Of course we all know we are preparing to vote in a huge election collecting all sorts of folks and not just the president of the United States by congress and state legislators. Fascinating new book written by our guest today takes a look at the unelected , unaccountable elite and it is amazing and along to talk about it. Senior fellow at the Manhattan Institute also leader of legal policy you have read his book all over National Media and by the way he was a jd and mba from yale where he was a fellow in law and economics mba from unc chapel hill. So glad to have you with us. Thank you for joining us at the john locke society. So is an honor i said it before as a National Think tank so much policy happens on the state level and the John Locke Foundation gives the Gold Standard to help to shape North Carolina in such a positive direction and then to be in the midst of a pandemic. Thanks for having me spin thank you for those comments i appreciate that. Your book writes about federal policy but hopefully as we talk about your book we can talk about Governor Cooper and the use of Emergency Powers here in North Carolina this book the unelected posting in the comments section where you can get your copy of the unelected tells about the key themes and why you wrote it. The key theme really is those government activities and then on other cases how much of that apparatus that doesnt mean elections dont matter. And the General Assembly and to elect judges and justices matters a lot also. And to capture the incomplete picture. There are thousands of municipalities the well over 1 million trial liar longest lawyers and to look at that telescopic we and thematically and what the government is doing for the fundamental constitutional design. So the notion among john locke and others that in some way wise active and to get things done but the people representative democratic principles as well as the limited government those that have been substantially eroded is hardly a surprise to talk about that in my final epilogue and then going from those early years and the First Congress the total appropriation of the federal budget of 39000. And then to agree on the next level of covid really in of the orders of magnitude in the early years. A lot of people have written about this and with limited governments those like john locke has committed to the liberty your responsibility and then these are the caveats it makes sense for the original constitutional design certainly not fanatically and holistically is the concept for this public accountability in the work that i have done many years in the think tank it does take dovetails on all these issues looking at the Administrative State with over criminalization with the legal scholars with the John Locke Foundation and in other states and Securities Law they all come back to a Central Point where we see a lot of government being done and a lot of liberty being lost without accountability and then taking a vote and then deciding to do so thats the principle thesis with those categories that are related that each of thes forces and it wouldnt necessarily change is much as we would think that thes others are similarly working to govern us with accountability so the first are called the rule makers. And the fundamental function of congress growing up in the seventies and eighties and nineties watching cartoons on saturday morning they would see schoolhouse rock, i am just a bill sitting on capitol hill. So in the criminal law sphere we dont know how many crimes there are. Those federal crimes exist of those 98 percent came into being without that express enactment by congress. Congress never saw those rules again and of course the same thing is true was civil law so with that departure with the principle espoused by john locke and others that animated the constitution that they had to delegate the lawmaking and make new lawmakers but that is what we have done. There were precursors then to csc change in that conservative expansion of that delegation of rulemaking during the last 90 years. And we do see both parties are guilty of this. And then abrogating private mortgage contracts and then with a pandemic but then not to have an agency. And with that unilateral rule and clearly is far from as it is portrayed in schoolhouse rock. The second unelected actors that i focus on are the enforcers. Its important to keep in mind if its too hard to create new rules and then the Enforcement Actions that we can do something more than regulatory rulemaking which is ad hoc government by the threat of force. Look at the godfather then offer you cant refuse. Viewing the federal government and to have your business totally under their control. If you are a Pharmaceutical Company in the federal government says you cannot be we burst anymore if your Financial Company in the federal government says you luger license and the strong arm of the federal government comes into play. I want to emphasize this but the bigger problem in some respects was the individuals to have large compliance teams lawyers and fancy degrees doesnt mean they will comply perfectly but they can strongarm them to create regulations and with that sanction for conduct but and with that regulatory crimes there is just no way and also at the state level and working with the John Locke Foundation on this talking about over criminalizing the states. And it is the federal level usually where we see strongarm big business through regulatory enforcement. And how to strongarm entire industries. But what we talking about for the regulatory or Administrative State at some level high level folks who go to the confirmation process is not like theres no connection whatsoever but there is a lot of autonomy and essentially we are in the running for the checks and balances that they put into the constitution and those joining the republic with a very legislative and regulatory news. Host let me ask you this is this what some people refer to as permanent washington . The matter whose they are the administration or the politics that is wielding all sorts of power . That is basically correct. I dont want to over emphasize that a number of the federal agency apparatus very much responsive to the president ial election cycle but thats part of the problem. We put so much stock in president ial elections like the executive branch has so much authority on of course the same thing is true with the judiciary that it was my number one reason voting for president. Not only with judicial review but it is the number one issue. So there is a lot of power but it can be slow down to one step forward to step back approach from the last administration barack obama cannot persuade congress to do what he wanted through executive action the court said you did not do it right so now it has taken on a life of its own. That they can be reversed right back so there isnt a lot of stability in the law and by and large the apparatus the courts have brought to bear on the Administrative State, tends to give a hard look, a close look to the reversals of regulatory actions there is a lot of deference given and then when the new administration comes in to undo those regulations it is harder to undo the old then it was the new in the first place. Thats a system we have right now. Host so it really does matter who you electro president based on their view of the regulatory state and it could go back and forth of these executive orders but it does matter. It does. So chapter two of my book goes through these independent agencies and the courts have allowed independent agencies these cause i legislative powers and staggered terms of rule makers like the fcc or stc while there are president ial appointments and play of those bipartisan commissions the party that doesnt control the white house now there are differences of this you dont get these policy reversals but it is very different from the basic constitution design and these sorts of bodies that are delegated by congress in the white house cant say i want them off the sec i dont like their views they dont have that power so ultimately the big problem is that you get true believers that the government can get to beg so those who are committed to environmental the form or committed to a certain view of Securities Law that thes agencies that have a certain view of the world they tend to skew in a certain direction so if you get that the regulatory champion in the Regulatory Agency so you have this problem. Every country has a legal system to adjudicate disputes we have a private legal system so when you talk about criminal law the state prosecuting misconduct with a lot of scrutiny and then rain their disputes to the government whether disputes over property or contracts or over tort reform were it isnt predicated on a preexisting contractual relationship so the products we buy to voluntarily buy it to governor on govern those lawsuits. Is that a classaction lawsuit . It is a variant of the tort lawsuit and a relatively recent creation. This is the third part of the book that talks about the litigators and what it means these folks to litigate private disputes and i think a lot of people who are skeptical the libertarian folks say this is much better than the Administrative State sometimes it is and sometimes it isnt but it still state action literally defended in court by choice because then another person sues the business and for the states monopoly to enable the plaintiff to recover. If the legal system works well with a low cost way to resolve disputes that is one thing and to be deeply rooted the jury is out for the state constitutions but that original inception was a very narrow area of law so very particular pleadings in the early days even to testify in court with these cases if you assume any kind of risk and then to develop the bar so certainly the European Countries if you bring a lawsuit and if you lose you have to pay their fees but thats not how it works if it is successful you can still lose and so the first example that i use and Chapter Seven a lady who wanted to renovate a Historic Hotel in california she let a friend of her friends stay there than that individual got a plaintiffs lawyer to file a disability lawsuit of course anything wasnt up to code yet she was still renovating the hotel. But it was a shakedown lawsuit give me 15000 and we will go away she wanted but then she lost 100,000 and lawyers fees. Thats why you get the shakedown lawsuits in the first place its a piece of that and thats what you add a bunch of cases together and those classaction attorneys now they dont have any clients. So the lawyer files the lawsuit with the named plaintiff it could be small and the attorneys on one side they reach a settlement they reach a settlement and then to have those procedural rules came under the modern genesis. [inaudible] so they would develop all the new rules in the United States if i sued and then you have to turn over all the emails and sit down for depositions thats american rule and deposition and they kept the committee around started by a law one harvard law professor and his protege and crafted the modern classaction where you have to affirmatively opt out so they send you something in the mail if you dont say keep me out the you are in that was created on the back of the professors car written on a manual typewriter it never existed before they drafted it so we have thes crazy shakedown classaction lawsuits who wrote the rule but the rules can be skewed on behalf bringing the state power to bear. So in addition to rule makers and enforcers with the unelected and then the new anti federalist. This is important because most of us support limited government and Classical Liberal principles instinctively say were with pro states rights and then the ordinary case that is good but state legislators to get the policy package right because people vote with their feet and businesses can as well so of california raises taxes in North Carolina doesnt then you can move to North Carolina. Is a regulatory state and one state is too big its the same thing. And its not just pressure at the state doesnt provide the services if the roads are horrible that affects their business for people locate as well so it creates this implicit market style pressure of those federalism forces so man litigation its a classic case if youre just talking about your local business and its getting sued by workers or customers locally and its too permissive for the plaintiffs lawyers then the same at the medical malpractice if doctors are sued a lot they can relocate to other states and hospitals can invest elsewhere so ultimately pay the price but we do have situations where a National Lawsuit can be filed anywhere under the current doctrine as well long as its a stream of commerce so North Carolina cant protect against a lawsuit against Madison County illinois for the American Tort Reform Association and then also the new anti federalism our elected officials that are state or local dictating policy for everyone else so the mayor of new york comes out trying to change Climate Change policy with a federal nexus to do that from city hall in new york or San Francisco we see these cases with a tobacco lawsuit and litigation farmed out on behalf of the state attorneys general who get Campaign Contributions that they turn around and higher so we see this National Policy so nobody in raleigh your charlotte or greensboro voted for the people in new york city or San Francisco or albany and sacramento. But yet these officials from other states try to create National Policy so they interfere with the federal scheme even if they get it right the states actors can come in to try to dictate National Commercial regulation from state and local perspective. Host we have been talking with James Copeland from the Manhattan Institute the 14 areas he reviews in his new book called the unelected. Go to the comments section of the Facebook Page you can find a link to get his book. There so much here to talk about but i want to get back to what we mentioned earlier you brought up the cdc and with cove in 18 we pay close attention to their scientist and experts much more than i would suspect we ever paid attention before covid19. That talk about the power that even in National Review wrote a piece that the cdc power grab and one question that is relevant to what you talk about in your book if the executive branch can unilaterally suspend residential evictions to limit the spread of coronavirus is there anything it cant do . With this Administrative State what cant it do . There are still some guardrails around that congress can do but it is an extremely broad power under the auspices of the Commerce Clause the courts have permitted congress to do mostly what it wants there are some cases that were exceptions like violence against women thats not commercial behavior so they said it has to involve some sort of commerce so gonzales with the federal drug laws convicted under federal law, not state law of growing marijuana in his backyard he wasnt selling it just growing it but he had to buy seeds in arguably it could affect the drug trade itself and the president from the new deal era to have the same basic logic where farmer was using his own crops for his own use on his own farm and the government said you have to follow the agricultural scheme even though you dont sell it but the Supreme Court let that go i do think there are two conception issues and wine is the contractual issue itself. While congress will not abrogate the freedom of contract, this is a pretty big infringement on Property Rights so some litigation would be premised on that but it is the nondelegation doctrine. Host thats what john locke espoused. Although not the original exponent of writing it down he did not invent the concept but that had been talked about over the centuries in england and i go to that history in the book. But john locke wrote the legislative power exist only to make laws and not legislators so montesquieu and the great chronicle or of the laws of england at the time it was enacted you cannot delegate the lawmaking power. And thats where we lost some of that so that the statutory question is this delegation to the cdc is that an accurate reading and then the second question is to be delegated that broad of a power is that constitutional . And the court has not come back since 1935 basically signed off on the rest of the new deal they have tapped into the ability of the executive branch to make law that should reside with congress and this is a doctrine of constitutional law that major questions doctrine. The basic principle is if it is a big Public Policy question Congress Needs to resolve it. But in areas like regulating tobacco, the fda tried to